Former prosecutor says treatment of Guantanamo detainees puts U.S. soldiers at risk

The U.S. government’s handling of prisoners at Guantanamo Bay detention camp in Cuba puts its own soldiers and citizens at risk if they are detained by foreign forces, the former chief prosecutor at Guantanamo says.

Retired Air Force Col. Morris Davis served as Guantanamo’s chief prosecutor from 2005 to 2007 and will give four lectures at Triangle-area colleges Thursday and Friday. Davis says the United States cannot expect other countries to observe the laws of war if it doesn’t uphold them itself.

“The United States led the effort, particularly in the wake of World War II, in creating the Geneva Conventions and creating this body of law to regulate conflict,” Davis said by phone from Virginia. “And since 9/11, we’ve really turned our back on it.”

The detention facility at Guantanamo has been a center of legal debate since it opened in 2002 to hold detainees from the wars in Afghanistan and then Iraq. What happens there is of interest to people in North Carolina who believe that a Smithfield-based company, Aero Contractors Ltd., has served as an air taxi service for the CIA, taking detainees from Guantanamo to countries where they can be questioned under conditions not allowed under U.S. law. The process is known as extraordinary rendition.

N.C. Stop Torture Now, which has pressed unsuccessfully for years for an investigation into Aero Contractors’ activities, invited Davis to speak in North Carolina. He’ll give free presentations at UNC-Chapel Hill, Duke University and Johnston Community College on Thursday, and at N.C. State University on Friday.

Aero Contractors has declined to comment on protesters’ claims about its involvement in extraordinary rendition of Guantanamo detainees.

Congressional Republicans have resisted attempts to close the camp and transfer detainees to U.S. prisons. During a debate in November, U.S. Sen. Lindsey Graham, R-S.C., said the American public doesn’t want to close Guantanamo, “…which is an isolated, military-controlled facility, to bring these crazy bastards that want to kill us all to the United States.”

Agencies’ goals in conflict

Davis grew up in Shelby, studied criminal justice at Appalachian State University and got his law degree from N.C. Central University. He served 25 years in the Air Force, mostly as a military judge.

Davis became chief prosecutor of the Guantanamo military commissions in September 2005, and he says he took the job believing that the government was committed to full, fair and open trials of the people held there. But he resigned two years later, frustrated by a process he says is hindered by the competing goals of the law enforcement and justice systems, and that of the intelligence agencies.

“Law enforcement is interested in holding people responsible for breaking the law, so it’s more of a looking back,” Davis said. “Intelligence is more concerned about what you’re planning on doing tomorrow, and stopping it from happening.”

Law enforcement has to gather evidence in a way that it will be admissible in court, Davis says; intelligence officers just want the most accurate information they can get.

While the government doesn’t discuss extraordinary rendition, it is widely believed to have been used to elicit information from Guantanamo detainees. Depending on what methods were used to extract it, such information may not be admissible in court.

The Bush administration argued that detainees there were not subject to the protection of the Geneva Conventions, though the U.S. Supreme Court later ruled otherwise. As a presidential candidate, Barack Obama favored closing Guantanamo, but Congress has resisted efforts to transfer prisoners from there to facilities in the U.S. or other countries.

About 779 people have been held at Guantanamo since it opened. Davis says it now holds 166 people, 86 of whom have been cleared for release but have not been returned to their home countries; 25 to 30 the government plans to prosecute, but hasn’t decided whether to do so by military commission or federal court; and between 50 and 55 whom the government would like to prosecute but doesn’t have proper evidence to do so, or has classified evidence that can’t be presented in court.

The last group is the most troubling, Davis says, because their situation amounts to indefinite detention, something the U.S. protests when its citizens are arrested abroad.

International laws of war

Madeline Morris, a Duke University law professor who has helped defense attorneys on the cases of Guantanamo detainees through Duke’s Guantanamo Defense Clinic, said the issue is clearest with those suspected of being Taliban fighters.

At the outset of the war in Afghanistan, she said, the Taliban were considered regular armed forces, and captured fighters would be treated as prisoners of war, entitled to protections and military legal proceedings. If they are now being treated as illegal combatants, with no POW protections, Morris said, “We have left our troops vulnerable to that kind of distortion of POW rights should our troops become involved and find themselves in that position.”

Davis believes Guantanamo should be closed. Diplomatic negotiations will be required to return the cleared detainees to their home countries, which would be responsible for monitoring them. Those the government has enough evidence to prosecute should be brought to the U.S. and tried in federal court, Davis says. The others, the ones the government believes are guilty but can’t prove it in court?

“I’m not sure what they’re entitled to,” Davis said, “but whatever it is, it has to be something that we would say, ‘If this were an American being detained in another country, we would accept the same process.’

“If we’re not willing to say that, then we shouldn’t be doing it to someone else.”